DC Circuit Revives Bid by Democrats to Get Trump Hotel Lease Records

The Trump International Hotel in Washington. (AP Photo/Alex Brandon)

WASHINGTON (CN) — A federal appeals court has sided with more than a dozen members of Congress in their attempt to get their hands on details about the Trump Organization’s lease on the luxury hotel located in the capital’s historic Old Post Office building.

In an opinion released Tuesday morning, the D.C. Circuit held that the lawmakers have standing to pursue their case against the head of the General Services Administration.

In a complaint filed in Washington federal court in 2017, Democrats on the House Oversight Committee claimed President Trump has refused to divest his ownership interest in his namesake Washington hotel “even though the lease explicitly prohibits any ‘elected official of the government of the United States’ from taking or sharing in any benefit that ‘may arise’ from the lease.”

The president is a partner in Trump Old Post Office LLC, with his daughter Ivanka and sons Donald Jr. and Eric.

The Democrats suffered a setback in August 2018 when U.S. District Judge Amit Mehta found they lacked standing to sue, but the D.C. Circuit reversed Tuesday in an opinion penned by U.S. Circuit Judge Patricia Millett, a Barack Obama appointee.

“A rebuffed request for information to which the requester is statutorily entitled is a concrete, particularized, and individualized personal injury, within the meaning of Article III,” Millett wrote. “That traditional form of injury is quite distinct from the non-cognizable, generalized injuries claimed by legislators that are tied broadly to the law-making process and that affect all legislators equally.”

The original lead plaintiff in the case was the late Congressman Elijah Cummings, who was a member of the House Oversight Committee until his death last year. The complaint cited the so-called seven-member rule, a provision of federal law that says an executive branch agency must turn over records if they are requested by any seven members of the committee.

Millett wrote in the majority opinion that the right to request information under the seven-member rule – codified in Section 2954 – “is on all fours, for standing purposes, with the informational right conferred by” other statutes like the Freedom of Information Act.

“In statutory informational injury cases, a plaintiff must allege that ‘it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it,’ and that ‘it suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure,’” she wrote. “The requesters have alleged just that.”

U.S. Circuit Judge David Tatel, a Bill Clinton appointee, joined Millett in the majority.

But in a dissenting opinion Tuesday, Senior U.S. Circuit Judge Douglas H. Ginsburg, a Ronald Reagan appointee, pushed back on the Democrats’ standing theory. 

“When a defendant impedes legislators in the fulfillment of their legislative duties, the defendant harms the legislature, not the legislators,” he wrote. “When their request was refused, it was the House that suffered a legally cognizable injury-in-fact, not the members who bring this suit.” 

Ginsburg’s dissent matches concerns expressed in a 2004 amicus brief filed by the House of Representatives’ Bipartisan Legal Advisory Group, which was attached to Justice Department briefs in the Trump hotel lease dispute.

At the time, Democrats in the House minority led by then-Congressman Henry Waxman of California tried to get information related to the anticipated costs of the Medicare Prescription Drug and Modernization Act of 2003.

The Bipartisan Legal Advisory Group said that if the seven-member rule was used like Waxman wanted then and House Democrats want today, it could “severely harm” the ability of the legislative branch to obtain information. 

“Making Section 2954 judicially enforceable would allow small groups of members within one committee to bring suit without the authorization of the House or its leadership, which would conflict with House rules designed to maintain institutional control over the House’s investigatory authority,” the brief states. “Without such institutional control, the courts, rather than the House, would decide what information is needed for legislative purposes, and the House’s ability to resolve information access disputes without resort to litigation would be severely curtailed.”

How the dispute over Trump’s hotel will be impacted by Joe Biden’s rise to the White House is unclear.

Attempts to reach the General Services Administration for comment were not returned by press time.

Democratic Congresswoman Carolyn Maloney of New York, the new lead plaintiff in the wake of Cummings’ passing, and other members of the House Oversight Committee also did not immediately respond to requests for comment.

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